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Long v. Continental Divide Electric Cooperative3/17/1994
y who partially or wholly collects a judgment in some manner may not pursue an appeal that could affect the portion of the judgment that is collected. Id. Nothing in Courtney or the other cases discussing this rule, however, indicate that the converse is true--that a party who pursues an appeal is precluded from collecting on the judgment. This rule is intended to force a party who accepts the benefits of a judgment from challenging that judgment. Defendant has not cited any authority indicating that a party may not seek to obtain the benefits of a judgment, by executing on it, simply because an appeal is pending. Of course, if the party is successful in executing on the judgment, and has therefore accepted the benefits of the judgment, that party's appeal is then subject to dismissal. See id. In such case the party is deemed to have waived its right to appeal, not the right to attempt to collect on the judgment.
We also find Defendant's second argument to be without merit. The risk that Plaintiffs will not be able to repay the amount collected if the judgment is subsequently reversed on appeal does not warrant disregarding the time provisions prescribed by the rule or statute. An appellant may protect itself against such possibility by timely posting the required bond. See (appellant must
post supersedeas bond in order to stay execution of final judgment).
In summary, we agree with Plaintiffs that under the record here Defendant failed to comply with the time limitations of either Section 39-3-22(A) or SCRA 1-062(D). Since Defendant did not do so, we conclude that the district court erred in allowing Defendant to post a supersedeas bond and obtain a stay of execution after the expiration of the time limitations prescribed by both Section 39-3-22(A) and SCRA 1-062(D). See Rogers v. Herbst, 25 N.M. 408, 411, 183 P. 749, 750 (1919) (applying former version of supersedeas rule and statute identical to the current Section 39-3-22(A), and holding that to allow an appellant to file or amend a supersedeas bond after the deadline for doing so had passed would invalidate the time limitation provisions of the statute). We therefore grant Plaintiffs' motion to lift the stay. Our ruling on this motion does not constitute any determination of the validity of Defendant's appeal on the merits.
IT IS SO ORDERED.
THOMAS A. DONNELLY, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
BRUCE D. BLACK, Judge
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